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FAILURE TO RULE ON A PORTION OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that a failure to rule on a portion of a motion cannot be deemed a denial. Therefore the decision on appeal was reserved and the matter sent back for a ruling:

Defendant appeals from an order insofar as it failed to grant that part of his pro se motion seeking DNA testing of a rape kit and the victim's shirt and pants. The order addressed defendant's motion to the extent it sought to vacate the judgment of conviction pursuant to CPL 440.10, but did not address the motion to the extent it sought DNA testing pursuant to CPL 440.30 (1-a). Inasmuch as County Court's failure to rule on that part of defendant's motion “cannot be deemed a denial thereof” … , we hold the case, reserve decision, and remit the matter to County Court for a determination whether ” there was a reasonable probability that, had th[e rape kit, shirt and pants] been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant' ” … . People v Lewis, 2018 NY Slip Op 06645, Fourth Dept 10-5-18

CRIMINAL LAW (APPEALS, FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT))

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APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING... FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS...